What is social media and why should a judge care about it as an employer? The term “social media” refers to the online technologies and practices that people use to share opinions, insights, experiences, and perspectives. Much of the time it is purely social, but it can also be used to establish business connections, make sales, and share community concerns. Social media takes many different forms, including text, images, audio, and video. The sites typically use technologies such as blogs, message boards, podcasts, wikis, and vlogs to allow users to interact. A few prominent examples of social media applications are Google and Wikipedia (reference); MySpace, LinkedIn, and Facebook (social networking); YouTube (video sharing); and Flickr (photo sharing).
Social media is changing faster than any one can keep pace. Yet, it is such a vital source of information today that an employer is at risk if he or she chooses to ignore the phenomenon. Employers need to be aware of the opportunities offered by social media in order to do the best job of selecting and supervising employees. According to CareerBuilder, twenty-two percent of employers used social networking sites to screen potential employees in 2008 and this percentage had jumped to forty-five percent by June 2009. Because all judges have an ethical duty under Rule of Judicial Conduct 2.12 to require staff to act in a manner consistent with the judge’s obligations under the Code, judges will want to be in the group of forward-thinking employers who use social media to their advantage.
The first and most practical use of social media for employers is in vetting a job applicant. Add internet searches to your due diligence in checking the backgrounds of job applicants. The primary sites to search are Google and major social network sites (e.g., MySpace, Facebook, and LinkedIn). YouTube and Twitter are other possible sources of information for applicants. When doing background checks, keep a record of your visits to the various social media sites. Note the date that you checked each site and what you did, or did not, find there. If you did find relevant information, print or save the screenshot for placement in the applicant’s file. You may find that either the applicant has not enrolled in a social network site or has set the site up with a privacy screen so that only confirmed friends may see the site. There is always some information to be gained, and hopefully it is a positive verification of the information already acquired.
When using Google, simply type in the name of the applicant, and if the applicant has a common name, type in any additional information that might narrow the search. As with all things Googled, it is helpful to use variety in your search terms when vetting an applicant. For example, on an applicant with a very common name, typing in the applicant’s name along with names of schools attended may provide information about Twitter status. You may discover an applicant’s Facebook account by typing in the applicant’s hometown. Google is a particularly rich source for information on active attorneys.
Anyone may do a search on MySpace for free at myspace.com. If the applicant has a profile but made it a private one, you will not be able to see it. Facebook and Twitter are also free, but you have to set up an account with each one to use them. When you go to facebook.com, the centerpiece of the page is the sign up for an account, and twitter.com also has a prominent “Sign up now” link. Be sure when you sign up that you make your site private. You may ignore requests to be “friends” unless you want to start using the site personally. If anyone mentions that you were sent a link to be that person’s friend, you can explain that you set it up to check on an applicant but that you do not use it.
The primary reason for a social network search is that it may reveal relevant information about the applicant. For example, a court would not want to hire an applicant who uses outrageous language and posts binge-drinking images on a site open to the public. Although there is a limited danger that you might discover irrelevant information, it is your responsibility to disregard all such information (race, gender, nationality, disabilities, religion and political party affiliation and opinions). You may be open to a discrimination claim if you do not hire the applicant; however, if you disregard the information and hire the person, any claim would be eliminated. If there are both relevant and irrelevant discoveries, simply download the relevant, disqualifying information and keep that with your record on which applicant you selected.
For current employees, social networking can be a problem. It can become social “not-working.” A potential issue is an employee posting inappropriate material about the court and parties to cases before the court. Courts should have a written policy for employees clearly stating prohibited posted information on their personal postings on any type of internet site. This is a policy that typically will be in addition to or an amendatory of existing internet and email use policies.
Employees also need to be given guidelines as to what information should be shared, or not shared, with you from social sites. For example, employees should not share any information with you about pending cases. However, you do want to know if your bailiff is reporting that he is drop down drunk every Saturday at the bar on the downtown square. Additionally all judges who have a social site should consider carefully before giving employees or local attorneys access to that site. You might discover more about them than you want to know and vice-versa.
Social media also has a role when employment must be terminated. For involuntary terminations, the employee’s access to the employee’s office computer should be under control before or at the time that the termination occurs. Once you give notice to the employee that he/she no longer works for you, the employee must have no means to access the court internet or email system. Even for voluntary departures, it is recommended that the employee’s access to the system be deleted sooner, rather than later. It is advisable to review the past email and internet use of a terminated employee to determine if there has been a possible violation of the internet and email policies, or an abuse of time. Such violations may mitigate or negate damages in any future lawsuit.
This information may also give you insight into how much your current employees are using the internet and how well you are managing your employees’ time. In addition, the review may provide you with information that you need on current work issues, such as inquiries from the State Court Administration about forms that have never been completed. The best news is if the search reveals nothing new to you. However, if the search is revelatory, the value may be priceless. Employees have up to two years to file a cause of action against you on various grounds. Finding out about the employee’s actual use or abuse of your policies can provide an excellent defense against litigation that you don’t even know exists. Waiting until litigation is filed is too late as the hard drive will probably have been cleaned or destroyed by that time. Make it part of your regular process for an employment termination to do this review of the computer use.
If you need assistance with drafting or reviewing a policy, or have any other concerns related to social networking, call your friendly legal advisor on employment law using the contact information below.